Legal fight continues over Strand Beach gates access

A three-year legal fight to decide whether gates will remain locked, unlocked or taken down at Strand Beach in Dana Point continued this week after the city petitioned a recent ruling on two cases related to public access.

On June 17, an appellate court ruled 2-1 that Dana Point bears the burden of proof for the need of a city ordinance that allows the city to lock two access gates to Strand Beach. A second ruling in a related case brought against the city by the Surfrider Foundation suspended Dana Point's appeal of a 2011 ruling, barring the city from enforcing that ordinance.

The ruling means the city has to go back to the original court and prove there is a valid reason to lock the gates, otherwise the Coastal Commission can force the city to take down the gates and apply for a permit. Because the ruling in this case would affect the city's appeal of the Surfrider case, the court temporarily suspended the appeal.

In its decision, the appellate court said the trial court's ruling of the ordinance as "excessive" and "invalid" in the Surfrider case suggests the trial court will rule similarly in the city's case, therefore giving the Coastal Commission jurisdiction, according to court documents.

Dana Point on Tuesday petitioned the court for a rehearing, questioning the judges' reasoning in the rulings. The city's petition cites a departure from "a decade of well-established law" as well as "factual misstatements" in the court's rulings.

"There are problems with that ruling because the law is very clear that a city doesn't have the burden of proving an ordinance is a pretext," said Patrick Muñoz, Dana Point's city attorney. "That concept is contrary to well-established rules of how we operate."

Muñoz said the appellate court's decision to place the burden of proof on the city was a "bizarre ruling" because it's basically impossible to prove the City Council's intent. He said the court also stated some factual inaccuracies in its ruling that warrant a rehearing.

The source of contention in the case is two access points at Strand Vista Park that lead to paths down to Strand Beach. The city gated both the access points and limits the hours of accessibility from 8 a.m. to 5 or 7 p.m., depending on the time of year.

Surfrider and the city have been at odds with each other since the gates went up. The foundation maintains that the restrictions violate the public's right to beach access promised in the state constitution. The city argues that it has a right to restrict access for public safety measures and that there are still unrestricted access points farther down the beach that make the beach accessible.

If the hearing is granted, Dana Point will have the opportunity to present what it believes is wrong with the appellate court's reasoning, Muñoz said. It would ask the court to declare definitively that the Coastal Commission has no jurisdiction and to issue a ruling in the Surf-rider case rather than suspending the appeal, he said.

If the petition is denied, the case won't be back in the trial court for at least 60 days, per procedure.

The Surfrider Foundation could not be reached for comment on the petition before press time; however, the foundation's legal council previously has expressed great optimism for the direction of the cases.

"If (the trial court) decides it the way the appellate court thinks they'll decide it, it will render the Surfrider case moot because the decision would be sufficient enough to allow the commission to remove the gates," said Mark Itri, an attorney representing the Surfrider Foundation.

Itri said he is confident the court will rule that the ordinance is invalid in the city's case against the commission given the fact that it already has in Surfrider's lawsuit.

Sanford Edward of Headlands Reserve LLC already has suggested the case will be taken to the California Supreme Court. The developer is listed as a party of interest in both cases. Headlands Reserve paid for the two access gates, and the path from them leads through the multimillion-dollar Strand at Headlands development.

Edward said he believes the appellate judges were so off base in their decision, that they have more than one option moving forward, he said.

"It will be appealed to the Supreme Court, and I absolutely guarantee you that it will be overturned," he said.

Itri said the city should not continue to fight a losing battle and waste taxpayer dollars on court fees. However, Headlands Reserve is footing all the legal bills as part of several indemnification agreements it made with the city years ago when the development was first approved, Muñoz said. This agreement includes reimbursing the city for any legal challenges related to the development.

Muñoz said the gates will remain intact and the hours enforced as long as the cases are being challenged – which could take years depending on how far the City Council and Headlands Reserve decide to take it.